By: Bivins S.B. No. 133
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the placement of a student in an alternative education
1-2 program.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 37.006, Education Code, is amended to
1-5 read as follows:
1-6 Sec. 37.006. Removal for Certain Conduct. (a) Except as
1-7 provided by Section 37.007(a)(3), a student shall be removed from
1-8 class and placed in an alternative education program as provided by
1-9 Section 37.008 if the student [engages in conduct punishable as a
1-10 felony, or] commits the following on or within 300 feet of school
1-11 property, as measured from any point on the school's real property
1-12 boundary line, or while attending a school-sponsored or
1-13 school-related activity on or off of school property:
1-14 (1) engages in conduct that contains the elements of
1-15 the offense of assault under Section 22.01(a)(1), Penal Code, or
1-16 terroristic threat under Section 22.07, Penal Code;
1-17 (2) sells, gives, or delivers to another person or
1-18 possesses or uses or is under the influence of:
1-19 (A) marihuana or a controlled substance, as
1-20 defined by Chapter 481, Health and Safety Code, or by 21 U.S.C.
1-21 Section 801 et seq.; or
1-22 (B) a dangerous drug, as defined by Chapter 483,
1-23 Health and Safety Code;
2-1 (3) sells, gives, or delivers to another person an
2-2 alcoholic beverage, as defined by Section 1.04, Alcoholic Beverage
2-3 Code, commits a serious act or offense while under the influence of
2-4 alcohol, or possesses, uses, or is under the influence of an
2-5 alcoholic beverage;
2-6 (4) engages in conduct that contains the elements of
2-7 an offense relating to abusable glue or aerosol paint under
2-8 Sections 485.031 through 485.035, Health and Safety Code, or
2-9 relating to volatile chemicals under Chapter 484, Health and Safety
2-10 Code; or
2-11 (5) engages in conduct that contains the elements of
2-12 the offense of public lewdness under Section 21.07, Penal Code, or
2-13 indecent exposure under Section 21.08, Penal Code.
2-14 (b) Except as provided by Section 37.007(c), a student shall
2-15 be removed from class and placed in an alternative education
2-16 program under Section 37.008 if the student engages in conduct that
2-17 contains the elements of the offense of retaliation under Section
2-18 36.06, Penal Code, against any school employee.
2-19 (c) A student shall be removed from class and placed in an
2-20 alternative education program under Section 37.008 if:
2-21 (1) the student receives deferred prosecution under
2-22 Section 53.03, Family Code, for conduct defined as a felony offense
2-23 in Title 5, Penal Code;
2-24 (2) a court or jury finds that the student has engaged
2-25 in delinquent conduct under Section 54.03, Family Code, for conduct
3-1 defined as a felony offense in Title 5, Penal Code; or
3-2 (3) the superintendent or the superintendent's
3-3 designee has a reasonable belief that the student has engaged in a
3-4 conduct defined as a felony offense in Title 5, Penal Code.
3-5 (d) A student may be removed from class and placed in an
3-6 alternative education program if:
3-7 (1) the superintendent or the superintendent's
3-8 designee has a reasonable belief that the student has engaged in
3-9 conduct defined as a felony offense other than those defined in
3-10 Title 5, Penal Code; and
3-11 (2) the continued presence of the student in the
3-12 regular classroom threatens the safety of other students or
3-13 teachers or will be detrimental to the educational process.
3-14 (e) In determining whether there is a reasonable belief that
3-15 a student has engaged in conduct defined as a felony offense by the
3-16 Penal Code, the superintendent or the superintendent's designee may
3-17 consider all available information, including the information
3-18 furnished under Article 15.27, Code of Criminal Procedure.
3-19 (f) The terms of a placement under this section must
3-20 prohibit the student from attending or participating in a
3-21 school-sponsored or school-related activity.
3-22 (g) On receipt of notice under Subsection (g), Article
3-23 15.27, Code of Criminal Procedure, the superintendent or the
3-24 superintendent's designee shall review the student's placement in
3-25 the alternative education program. The student may not be returned
4-1 to the regular classroom pending the review. The superintendent or
4-2 the superintendent's designee shall schedule a review of the
4-3 student's placement with the student's parent or guardian not later
4-4 than the third class day after the superintendent or
4-5 superintendent's designee receives notice from the office or
4-6 official designated by the court. After reviewing the notice and
4-7 receiving information from the student's parent or guardian, the
4-8 superintendent or the superintendent's designee may continue the
4-9 student's placement in the alternative education program if there
4-10 is reason to believe that the presence of the student in the
4-11 regular classroom threatens the safety of other students or
4-12 teachers.
4-13 (h) The student or the student's parent or guardian may
4-14 appeal the superintendent's decision under Subsection (g) to the
4-15 board of trustees. The student may not be returned to the regular
4-16 classroom pending the appeal. The board shall, at the next
4-17 scheduled meeting, review the notice provided under Subsection (g),
4-18 Article 15.27, Code of Criminal Procedure, and receive information
4-19 from the student, the student's parent or guardian, and the
4-20 superintendent or superintendent's designee, and confirm or reverse
4-21 the decision under Subsection (g) of this section. The board shall
4-22 make a record of the proceedings. If the board confirms the
4-23 decision of the superintendent or superintendent's designee, the
4-24 board shall inform the student and the student's parent or guardian
4-25 of the right to appeal to the commissioner under Subsection (i).
5-1 (i) The decision of the board of trustees under Subsection
5-2 (h) may be appealed to the commissioner as provided by Sections
5-3 7.057(b), (c), (d), and (f) of this title. The student may not be
5-4 returned to the regular classroom pending the appeal.
5-5 SECTION 2. Subsections (a), (c), and (h), Article 15.27,
5-6 Code of Criminal Procedure, are amended to read as follows:
5-7 (a) A law enforcement agency that arrests any person or
5-8 refers a child to the office or official designated by the juvenile
5-9 court [takes into custody as provided by Chapter 52, Family Code,
5-10 an individual] who the agency knows or believes is enrolled as a
5-11 student in a public primary or secondary school, for an offense
5-12 listed in Subsection (h) [of this article], shall orally notify the
5-13 superintendent or a person designated by the superintendent in the
5-14 school district in which the student is enrolled or believed to be
5-15 enrolled of that arrest or referral [detention] within 24 hours
5-16 after the arrest or referral is made [detention], or on the next
5-17 school day. The superintendent shall promptly notify all
5-18 instructional and support personnel who have responsibility for
5-19 supervision of [regular contact with] the student. All personnel
5-20 shall keep the information received in this subsection
5-21 confidential. The State Board for Educator Certification may
5-22 revoke or suspend the certification of personnel who intentionally
5-23 violate this subsection. Within seven days after the date the oral
5-24 notice is given, the law enforcement agency shall mail written
5-25 notification, marked "PERSONAL and CONFIDENTIAL" on the mailing
6-1 envelope, to the superintendent or the person designated by the
6-2 superintendent. Both the oral and written notice shall contain
6-3 sufficient details of the referral or arrest and the acts allegedly
6-4 committed by the student to enable the superintendent or the
6-5 superintendent's designee to determine whether there is a
6-6 reasonable belief that the student has engaged in conduct defined
6-7 as a felony offense by the Penal Code. The information contained
6-8 in the notice may be considered by the superintendent or the
6-9 superintendent's designee in making such a determination. [The
6-10 written notification must have the following printed on its face in
6-11 large, bold letters: "WARNING: The information contained in this
6-12 notice is intended only to inform appropriate school personnel of
6-13 an arrest or detention of a student believed to be enrolled in this
6-14 school. An arrest or detention should not be construed as proof
6-15 that the student is guilty. Guilt is determined in a court of law.
6-16 THE INFORMATION CONTAINED IN THIS NOTICE IS CONFIDENTIAL!"]
6-17 (c) A parole or probation office having jurisdiction over a
6-18 student described by Subsection (a), (b), or (e) [of this article]
6-19 who transfers from a school or is subsequently removed from a
6-20 school and later returned to a school or school district other than
6-21 the one the student was enrolled in when the arrest, referral to a
6-22 juvenile court [detention], conviction, or adjudication occurred
6-23 shall notify the new school officials of the arrest or referral
6-24 [detention] in a manner similar to that provided for by Subsection
6-25 (a) or (e)(1) [of this article], or of the conviction or delinquent
7-1 adjudication in a manner similar to that provided for by Subsection
7-2 (b) or (e)(2) of this article.
7-3 (h) This article applies to any felony offense[:]
7-4 [(1) an offense listed in Section 8(c), Article 42.18,
7-5 Code of Criminal Procedure; reckless conduct, as described by
7-6 Section 22.05, Penal Code; or a terroristic threat, as described by
7-7 Section 22.07, Penal Code;]
7-8 [(2) the unlawful use, sale, or possession of a
7-9 controlled substance, drug paraphernalia, or marihuana, as defined
7-10 by Chapter 481, Health and Safety Code;]
7-11 [(3) the unlawful possession of any of the weapons or
7-12 devices listed in Sections 46.01(1)-(14) or (16), Penal Code; or a
7-13 weapon listed as a prohibited weapon under Section 46.05, Penal
7-14 Code; or]
7-15 [(4) a criminal offense under Section 71.02, Penal
7-16 Code].
7-17 SECTION 3. Subdivision (1), Subsection (e), Article 15.27,
7-18 Code of Criminal Procedure, is amended to read as follows:
7-19 (1) A law enforcement agency that arrests, or refers to a
7-20 juvenile court under Chapter 52, Family Code, [detains] an
7-21 individual who [that] the law enforcement agency knows or believes
7-22 is enrolled as a student in a private primary or secondary school
7-23 shall make the oral and written notifications described by
7-24 Subsection (a) [of this article] to the principal or a school
7-25 employee designated by the principal of the school in which the
8-1 student is enrolled.
8-2 SECTION 4. Subsection (g), Article 15.27, Code of Criminal
8-3 Procedure, is amended to read as follows:
8-4 (g) The office of the prosecuting attorney or the office or
8-5 official designated by the juvenile court shall, within two working
8-6 days, notify the school district that removed a student to an
8-7 alternative education program under Section 37.006, Education Code,
8-8 if:
8-9 (1) prosecution of the student's case was refused for
8-10 lack of prosecutorial merit or insufficient evidence and no formal
8-11 proceedings, deferred adjudication, or deferred prosecution will be
8-12 initiated; or
8-13 (2) the court or jury found the student not guilty or
8-14 made a finding the child did not engage in delinquent conduct or
8-15 conduct indicating a need for supervision and the case was
8-16 dismissed with prejudice. [On receipt of a notice under this
8-17 article, a school official may take the precautions necessary to
8-18 prevent further violence in the school, on school property, or at
8-19 school sponsored or school-related activities on or off school
8-20 property, but may not penalize a student solely because a
8-21 notification is received about the student.]
8-22 SECTION 5. This Act applies beginning with the 1997-1998
8-23 school year.
8-24 SECTION 6. The importance of this legislation and the
8-25 crowded condition of the calendars in both houses create an
9-1 emergency and an imperative public necessity that the
9-2 constitutional rule requiring bills to be read on three several
9-3 days in each house be suspended, and this rule is hereby suspended,
9-4 and that this Act take effect and be in force from and after its
9-5 passage, and it is so enacted.